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Opinions

One of the duties of the Attorney General is to give his legal opinion, when required to do so by the Governor, on any question of law connected with the interest of the state or with the duties of any of the departments. O.C.G.A. § 45-15-3(1). However, to avoid having the Governor endorse all requests for opinions originating within the departments of the state, the Attorney General receives requests for opinions directly from the heads of the executive departments.

The Attorney General will also provide opinions to other state officers, such as legislators, judges or district attorneys. The Attorney General does not generally provide legal advice, opinions or representation to county or municipal governments or officials, but will on request review the written legal opinions and conclusions of counsel for local governments.

Opinions issued to the Governor and the heads of the executive departments are classified as "Official Opinions." Those issued to other state officers (such as legislators, judges or district attorneys) are classified as "Unofficial Opinions." Additionally, from time to time the Attorney General will approve interstate compacts or issue position papers on questions of state law. Those documents are published along with the opinions of the Attorney General.

This presentation of the opinions of the Georgia Attorney General is provided for informational purposes only and should not be considered as legal advice to the general public. From time to time, opinions may be withdrawn, revised or otherwise made obsolete.

Opinions of the Attorney General1994 - Current

For a copy of a pre-1994 opinion, please contact the Georgia Attorney General's Office at (404) 651-5825 or by e-mail at opinions@law.ga.gov.

The provisions of O.C.G.A. § 16-11-127, which prohibit the carrying of deadly weapons to or at public gatherings, while not limited in application to the enumerated places and functions in the statute, do not apply to every place in which the public may be present, but only to those places in which the public is gathered.

Ultimate Fighting matches that encompass boxing, kick boxing, or contact karate are subject to O.C.G.A. Chapter 31, the rules and regulations developed thereunder, and the authority of the Georgia Boxing Commission.

A supplemental retirement plan for public employees which does not require substantial benefit to the employer, in the form of new service or otherwise, violates the prohibitions against governmental gratuities and extra compensation for services rendered.

Pursuant to an act passed in 1996, rape and aggravated sodomy are no longer included within the crimes for which the mandatory minimum term of imprisonment is ten years; for these offenses, the mandatory term is one year in prison. Life without parole remains the mandatory term for repeat offenders.

The Lowndes County Sheriff's Department is authorized to enforce Lowndes County ordinances 94-0493-A and 94-0493-B, which prohibit trucks over ten wheels from using residential roads except when making temporary deliveries.

Official Code of Georgia Annotated ¿ 21-2-76 does not prohibit persons who hold office in political parties from serving as members of county boards of elections or boards of elections and registration as created under O.C.G.A. ¿ 21-2-40.

Referral of a complaint of possible fraud, waste, or other abuse in the programs of a public employer for investigation is not, in and of itself, a prohibited disclosure of the identity of the complainant; if the investigation determines that the complaint was made with knowledge of its falsity, or with reckless disregard for the possibility that it was false, the complainant may be subject to disciplinary action.

Under the plain language of O.C.G.A. ¿ 35-8-20.1(a), a newly appointed police chief who assumes his term of employment in a new police agency after December 31, 1992, must take the 60 hours of chief executive training unless the appointed chief has previously completed the training.

Unless it has been formally discharged by court order, a grand jury may recess and reconvene as it sees fit to conduct business during the term of court, and may investigate the operation of county offices by reasonably observing county officials in the performance of their duties.

To hold the office of sheriff, even as an interim appointment, an appointee must seek certification as a peace officer as required under O.C.G.A. ¿ 15-16-1(c)(1)(J) or get a waiver as prescribed under the same Code Section.

The duties of law enforcement officers and emergency medical technicians to facilitate organ donations under O.C.G.A. ¿ 17-6-11(b.1) must be performed harmoniously with the coroner's duty to take charge of the body of a fatally injured individual as required under O.C.G.A. ¿ 45-16-24.

In imposing criminal drug surcharges pursuant to O.C.G.A. § 15-21-100(a), only court costs relating to an offense prohibited by O.C.G.A. § 16-13-30, 16-13-30.1, or 16-13-31 should be included in determining the amount of the original fine.

The General Assembly may not, through the passage of a Joint Resolution which has the effect of law, infringe upon the Board of Regents' constitutional authority to govern, control, and manage the University System of Georgia.

O.C.G.A. § 45-7-54(a) authorizes state agencies to provide for automatic voluntary salary deductions to not-for-profit organizations engaged in educational, legislative, or professional development activities related to promoting and enhancing the efficiency, productivity, and welfare of state government services or of state government employees.

O.C.G.A. § 15-21-75 imposes liability for delinquent payments of sums imposed under the Peace Officer and Prosecutor Training Fund Act of 1983 upon the person, agency, or unit of government having the duties both of collection of those funds and remittance to the Department of Revenue. Georgia law now places that dual responsibility on the clerk of court.

State Board of Education Rules 160-4-4-.10 and 160-4-4-.20 are within the State Board of Education's statutory authority to promulgate rules and are consistent with the statutes regulating textbook adoption.

This will thank you for your January 2, 1996, appointment of me as a Special Attorney General. You asked us to render an opinion on the applicability of the United States Department of Defense Joint Ethics Regulation ("JER") to National Guard personnel while in a non-mobilized state status. Your request stems, in turn, from a similar request by Adjutant General William P. Bland, Jr.

Where there is governmental oversight or involvement, a student-run newspaper at a state educational institution is subject to the free speech requirements of the First Amendment and, therefore, may not exclude materials from publication based on their content absent a compelling state interest for doing so.

Official Code of Georgia Annotated ¿ 16-11-178 prohibits the receipt of a handgun by a person involuntarily hospitalized within the past five (5) years; that period of time is calculated from the person's release from hospitalization. Official Code of Georgia Annotated ¿ 35-3-34(d.1)(2) requires that judges of the probate courts and clerks of the superior courts advise the Bureau of all persons involuntarily hospitalized after March 22, 1995, the date the bill was signed by the Governor.

Existing law does not authorize the use of voter registration applications which contain an applicant's digitized signature; therefore, express authorization by the General Assembly must be obtained before a system which uses such technology may be implemented.

The Georgia Department of Family and Children Services may request that parents consent to placement of their children by the Department outside the family home, without the Department instituting legal action against the parents, either during the investigation of purported child abuse or after confirming child abuse, as long as the requirements under state and federal law for voluntary placements are met.

The scope of the Fair Use Doctrine, 17 U.S.C. § 107, for making copies for classroom use, for teachers who make copies for research and scholarship, and the potential liability of teachers, librarians, and employees of nonprofit institutions for exceeding the parameters of fair use.

The Gwinnett County Commission may increase the annual salary supplement for superior court judges beyond the minimum $19,750.00 provided for by local legislation, but a percentage of any such compensation must likewise be paid to the other county officials whose salaries are linked to local supplements paid to superior court judges.

The prohibition contained in the Georgia Ethics in Government Act against for-hire motor carriers regulated by the Georgia Public Service Commission contributing to political campaigns is still applicable despite the partial preemption provisions contained in the Federal Aviation Administration Authorization Act of 1994.

The Department of Transportation may give permits to American MAGLEV Technology, Inc., to cross the rights-of-way of state routes which will be traversed by the proposed MAGLEV trail between the Georgia State MARTA station and the parking lot across Capitol Avenue from Atlanta-Fulton County Stadium provided that substantial consideration is received from American MAGLEV for these permits.

While the Ethics in Government Act does not expressly prohibit an incumbent member of the General Assembly from soliciting a pledge or setting goals for contributions during a legislative session, such actions would clearly be contrary to the policies and purposes of the Act and should be avoided.

The provisions of O.C.G.A. ¿ 44-14-361.5, requiring an "owner" of real property who engages a contractor to perform improvements upon the property to file a "Notice of Commencement" of work, are not applicable to a state authority with regard to construction projects on public property; however, a contractor performing a public works contract for a state authority is required to file a "Notice of Commencement," in accordance with O.C.G.A. ¿ 36-82-104(f).

There is no per se conflict of interest for an attorney who serves in the General Assembly to represent and provide legal services to a community service board as defined in O.C.G.A. § 37-2-11.1(c)(1) with respect to general matters, as well as in conjunction with employee disciplinary proceedings, as long as the legislator, in his or her capacity as the board's legal representative, does not take any adverse action against the state or any of its agencies.

Alteration of the by-laws of the chamber of commerce would not work a change in the membership of the Crisp County - Cordele Industrial Development Authority and the appropriate representative to the authority is the chamber chairman who held the position of president at the time of the creation of the authority.